Recovering Children: What to do when another parent withholds or relocates your child without your consent.
We have seen an increase in recent months of parents withholding a child from another parent or relocating children without the other parent’s consent. This is not to say there is a pattern emerging, merely an observation within our own firm.
Whether you have Orders about parenting arrangements for your child/ren or not, if your child has been withheld contrary to Orders or where you are the primary caregiver, or your child has been relocated by the child’s other parent without your consent, it is important to act as soon as possible and take steps to have your child recovered, that is, returned to your care or their usual place of residence.
What is a recovery order?
A recovery order is an Order of the Federal Circuit and Family Court of Australia requiring a parent or another person to return a child to, usually, the primary carer. If the parent who is withholding the child or who has relocated the child, for example to another area or state, fails to return the child, the Order can also permit authorised persons, for example, police officers to remove the child from that parent or person’s care and return the child to the other parent.
These Orders can give broad powers to police officers, Marshall of the Court and other persons to find and recover the child and return the child to the relevant parent. The child’s name may also be placed on what is known as the Family Law Watchlist to prevent the child from being removed from Australia.
I don’t know where my child is. What can I do?
In addition to a recovery order, the Court can also make what is referred to as a ‘location order’. This order permits government agencies, for example, the Department of Human Services and the Australian Federal Police or individuals, for example family members and friends, to release certain information, for example residential address or other contact details, about the child or the other parent.
Location and recovery orders can also permit authorised persons to stop and search vehicles, aircrafts and other transport and to search premises to find the child and return him or her to the other parent.
What will the Court consider when making a recovery order?
The paramount consideration in any family law parenting matter is the best interests of the child. Often, recovery orders will be considered at what is referred to as an ‘interim hearing’. This is akin to an ‘in the meantime’ hearing before a final decision on all parenting matters can be made.
At an interim hearing, there isn’t an opportunity to ‘test’ evidence so often, the Court will rely on affidavit material and other evidence and oral submissions by the parents or lawyers for the parents.
At interim hearings, the Court will:
identify the competing proposals of the parties (that is, what orders each of (usually) mum and dad want the Court to make);
identify the issues in dispute in the interim hearing;
identify any facts that are agreed between the parties;
consider whether an order should be made about parental responsibility and if so, whether the presumption of equal shared parental responsibility applies or if it is rebutted (for example due to family violence or abuse of the child);
consider the matters in section 60CC of the Family Law Act which help the Court decide what is in the best interests of the child.
In deciding what is in the child’s best interests, the court must consider above all else, the need to protect the child from physical or psychological harm and balance this with the benefit to the child of having a meaningful relationship with each of the child’s parents.
There are then a number of other matters the Court must consider where those matters are relevant to a particular case, for example, the views expressed by the child or children (depending on their age and maturity and level of understanding); their relationship with each parent and other persons; the capacity of each parent or other person to provide for the child’s needs, including their emotional and intellectual needs and whether there has been or is family violence or a family violence order.
As evidence at an interim hearing is untested, the Court is usually not able to make findings about particular matters, for example whether family violence has occurred, but the Court is able to give weight to evidence about those issues and consider what Orders should be made to protect the child from an unacceptable risk of harm where the evidence suggests that the child may be at a risk.
In unilateral relocation matters, while the children’s best interests are paramount, they are not the sole determinant of parenting orders. The Court recognises a parent’s right to enjoy the freedom to choose where they live. Accordingly, a parent doesn’t need a compelling reason to relocate. It is only when a child’s welfare would be adversely affected that a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests (U v U at [262]). In saying that, in interim matters where a parent has unilaterally relocated a child, the Court may make a coercive order for a parent to return with the child until such time as the matter can be determined on a final basis.
How long will it take?
Generally, Recovery Orders are given high priority and the Court aims to list them within 14 days of the application being made. If there is a concern about risk of abuse, family violence or neglect of the child then a parent or their lawyer can include a letter to a Registrar with their application seeking for the matter to be considered more urgently.
A parent or their lawyer may also seek to dispense with service, that is notifying the other parent of the application for the recovery order, and other procedural rules in certain circumstances so as to not delay a decision in relation to an urgent recovery order, particularly where there is an allegation of family violence or risk.
My child is being withheld by the other parent or has been relocated without my consent, what steps should I take to have a recovery order issued?
Time is of the essence and the most important thing is to seek advice as soon as possible. The steps you take early may have an impact later on how urgently and seriously your matter is considered and delays may indicate a complacency or non-urgency. If the child has been relocated and then enrolled in a school, extra curricular activities and otherwise becomes entrenched, depending on the age of the child, the Court may find that it is then in the child’s best interests to remain in their new location.
There is some work to be done in preparing an application for a recovery order. Your lawyer will need to prepare, with your instructions, the application which tells the Court what orders you are seeking, an affidavit by you which sets out the reasons you say the child should be returned and a notice of child abuse, family violence or risk. These documents can take time to prepare and the sooner you seek advice, the sooner these important documents can be finalised, signed and filed with the Court.
Other things you can do are:
If you believe the child is at imminent risk of harm, call 000.
If you have Orders in place, seek assistance from your local police. They may be able to use the existing Orders to encourage or require the return of the child;
If you know where the child is, you might approach the local police and request a welfare check if you have concerns about the child’s safety;
Keep records of any text messages, emails or other communication exchanges that indicate when and where the child was to be returned.
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